Obesity remains a serious health problem and it is no secret that many people want to lose weight. Behavioral economists typically argue that “nudges” help individuals with various decisionmaking flaws to live longer, healthier, and better lives. In an article in the new issue of Regulation, Michael L. Marlow discusses how nudging by government differs from nudging by markets, and explains why market nudging is the more promising avenue for helping citizens to lose weight.

Armed with a computer model in 1935, one could probably have written the exact same story on California drought as appears today in the Washington Post some 80 years ago, prompted by the very similar outlier temperatures of 1934 and 2014.

Two long wars, chronic deficits, the financial crisis, the costly drug war, the growth of executive power under Presidents Bush and Obama, and the revelations about NSA abuses, have given rise to a growing libertarian movement in our country – with a greater focus on individual liberty and less government power. David Boaz’s newly released The Libertarian Mind is a comprehensive guide to the history, philosophy, and growth of the libertarian movement, with incisive analyses of today’s most pressing issues and policies.

Tag: Commerce Clause

Today is a good day for liberty. And a bad day for those who say that Congress is the arbiter of Congress’s powers. By striking down the individual mandate, Judge Hudson vindicated the idea that ours is a government of delegated and enumerated – and thus limited – powers. Even if the Supreme Court has broadened over the years the scope of Congress’s authority to legislate under the guise of regulating interstate commerce or to tax for the general welfare, “the constraining principles articulated in this line of cases… remains viable and applicable to the immediate dispute.”

In short, we have come far from the days when pundits dismissed the lawsuits challenging the new health care law as frivolous political gimmicks. This is just one district court – whose opinion is not binding on the judges who will now consider the government’s appeal – but we can now see the day where this unprecedented assertion of federal power is definitively rejected as fundamentally contrary to our constitutional order.

As Judge Hudson said, “Despite the laudable intentions of Congress in enacting a comprehensive and transformative health care regime, the legislative process must still operate within constitutional bounds. Salutatory goals and creative drafting have never been sufficient to offset an absence of enumerated powers.”

I wrote an op-ed for National Review (Online) last week showing how conservative exploitation of the Supreme Court’s broad misreading of the Commerce Clause to reach intrastate medical marijuana facilitated liberal exploitation of the same to create the individual mandate in Obamacare.

A principled stand on the limits of federal power does not begin and end with health care. The Commerce Clause is a double-edged sword: Conservatives cannot wield it in the drug war without making it a useful tool for advancing progressive visions of federal power.

So far, many conservatives outraged over Obamacare do not seem to have reconsidered their enthusiasm for national drug prohibition. Whether they do so could provide a good indication as to whether they’re standing up for a principle — or merely against the president.

In 2006, the Supreme Court held in Gonzales vs. Raich that the Commerce Clause confers on Congress the authority to ban the use of marijuana, even when a state approves it for “medical purposes” and it is produced in small quantities for personal consumption. Many legal scholars criticize the Court’s extremely broad reading of the Commerce Clause as inconsistent with its original meaning, but the Court’s decision nonetheless stands.

Yes, the decision “nonetheless stands.” That doesn’t make it right. Several prominent conservative drug warriors signed on to an amicus brief in Raich endorsing an expansive use of the Commerce Clause. Copy, paste, and replace the word “marijuana” with “health insurance,” and you just wrote a Department of Justice brief for any of the suits defending Obamacare across the nation.

Or, for a good laugh, go read former Oklahoma congressman Ernest Istook, now working for Heritage, who frames the health care debate as “Obamacare vs. Limited Government.” As he puts it: “Straining to find a constitutional basis for mandating that everyone must buy health insurance, Obama’s lawyers resorted to the all-purpose Interstate Commerce Clause.” Istook signed on to the drug warrior brief in Raich.

There’s no good reason for this inconsistency. State attorneys general from both sides of the aisle opposed the federal intrusion in Raich. Deep red Alabama, Mississippi, and Louisiana touted their drug warrior prowess but argued against an overly broad Commerce Clause reading on federalism grounds. True blue California, Maryland, and Washington argued that the Controlled Substances Act did not bar states from regulating intrastate markets.

The change was made in response to a federal judge’s opinion in August that Lake Elmo’s protectionist law likely violated the U.S. Constitution because it discriminated against interstate commerce. Magistrate Judge Franklin L. Noel stated that the law “squelche[d] competition … altogether, leaving no room for investment from outside,” and would likely have “obliterate[ed] … the Lake Elmo markets in pumpkins and Christmas trees… . In fact, Plaintiffs have shown that the markets will be wiped out.”

Congrats to our friends at the Institute for Justice who spearheaded this case! You can read more here. And you can find Judge Noel’s opinion here.

The passage of Obamacare heralded an important discussion on whether the Constitution places any effective limits on federal power and, in particular, where Congress gets the constitutional warrant to require every person to enter the private marketplace and buy a particular good or service. This is a healthy discussion to have, including in the courts.

Today’s ruling in Michigan, dismissing the Thomas More Law Center’s challenge to the individual mandate, while disappointing to those of us who believe that the government lacks the power to commandeer people to engage in transactions – “economic mandates,” as it were – is but one of many legal decisions we can expect on the way to the Supreme Court’s ultimate resolution of this important issue. Indeed, this summer we saw a ruling by a federal judge in Virginia allowing that state’s legal challenge to the individual mandate and other aspects of the health care legislation to proceed. And last month, a federal judge in Florida heard arguments in a similar lawsuit brought by 20 other states – a decision on which we can expect later this fall. Other serious cases continue in Arizona, Missouri, Ohio, the District of Columbia, and elsewhere.

Perhaps most notable about the Michigan opinion, however, is the scant space spent on the serious Commerce Clause arguments on which hundreds of pages have been filed in these cases by top lawyers, legal experts, and academics (includingCato – yes, I’m heavily vested in this litigation). After granting that the plaintiffs had standing and that the case was ripe for adjudication, and rejecting the government’s odd Anti-Injunction Act defense, Judge Steeh takes only seven and a half pages to reject the plaintiffs’ arguments – half of which is spent reciting existing doctrine. It is as if the court merely issued a “placeholder” opinion, pending a “real” resolution on appeal.

And the novel conclusion we gain from this curt disposition is that Congress can now regulate people’s “economic decisions,” as well as do anything that is part of a “broader regulatory scheme.” If the Supreme Court eventually upholds the kind of reasoning Judge Steeh used here, nobody would ever be able to claim plausibly that the Constitution limits federal power. Finding the individual mandate constitutional would be the first interpretation of the Commerce Clause to permit the regulation of inactivity – requiring an individual to engage in economic activity.

The federal government would then have wide authority to require Americans engage in activities of its choosing, from eating spinach and joining gyms (in the health care realm) to buying GM cars. Or, under Judge Steeh’s “economic decisions” theory, Congress could tell people what to study in school or what job to take. That may be the unfortunate state of the law in a few years – once the Supreme Court has weighed in, and I doubt it would ever go so far in any event – but it is not up to district courts to extend constitutional doctrine on their own.

The legal battle against Obamacare continues. In June, a district court in Richmond denied the government’s motion to dismiss Virginia’s lawsuit (in opposition to which Cato filed a brief). Despite catcalls from congressmen and commentators alike, it seems that there is, after all, a cogent argument that Obamacare is unconstitutional!

Having survived dismissal, both sides filed cross motions for summary judgment—meaning that no material facts are in dispute and each side believes it should win on the law. Supporting Virginia’s motion and opposing the government’s, Cato, joined by the Competitive Enterprise Institute and Georgetown law professor (and Cato senior fellow) Randy Barnett, expands in a new brief its argument that Congress has gone beyond its delegated powers in requiring that individuals purchase health insurance.

Even the cases that have previously upheld expansive federal power do not justify the ability to mandate that individuals buy a product from a private business. Those cases still involved people that were doing something—growing wheat, running a hotel, cultivating medical marijuana. The individual mandate, however, asserts authority over citizens that have done nothing; they’re merely declining to purchase health insurance. This regulation of inactivity cannot find a constitutional warrant in either the Commerce Clause, the Necessary and Proper Clause, or Congress’s taxing power. Such legislation is not “necessary” to regulating interstate commerce in that it violates the Supreme Court’s distinction between economic activity (which often falls under congressional power as currently interpreted) and non-economic activity (which, to date, never has), it is not “proper” in that it commandeers citizens into an undesired economic transaction.

Finally, the taxing power claim is a red herring: (a) neither the mandate nor the penalty for not complying with the mandate is a tax, and is not described as such anywhere in the legislation; (b) even if deemed a tax, it’s an unconstitutional one because it’s neither apportioned (if a direct tax) nor uniform (if an excise); (c) Congress cannot use the taxing power to enforce a regulation of commerce that is not authorized elsewhere in the Constitution.

The district court will hear arguments on the cross-motions for summary judgment in Virginia v. Sebelius later this month and we can expect a ruling by the end of the year.

Elena Kagan’s confirmation represents a victory for big government and a view of the Constitution as a document whose meaning changes with the times. Based on what we learned the last few months, it is clear that Kagan holds an expansive view of federal power – refusing to identify, for example, any specific actions Congress cannot take under the Commerce Clause. She will rarely be a friend of liberty on the Court.

It is thus telling that Kagan received the fewest votes of any Democratic nominee to the Supreme Court in history, beating the record set only last year by Sonia Sotomayor. Even several senators who had voted for Sotomayor voted against Kagan, including Democrat Ben Nelson – as did Scott Brown, the darling of these high-profile Senate votes.

It was Scott Brown’s election, after all, that signaled that last year’s elections in Virginia and New Jersey were no fluke, that whether people lived in a Red, Blue, or Purple state, they were tired of bailouts, “stimulus,” re-regulation, and, especially, the government takeover of one-sixth of our economy. This anger has only grown since then, making itself felt most recently in Missouri voters’ overwhelming (71-29) rejection of the individual health insurance mandate.

“Where does the government get the constitutional authority to do this?” the cry goes up across the land. Elena Kagan won’t give a satisfactory answer but the American people are right to continue asking.

David Boaz already noted Missourians’ overwhelming rejection of the individual mandate yesterday. That, combined with Monday’s decision in Virginia’s lawsuit – where the judge denied the government’s motion to dismiss, ruling that Virginia had standing to make its claims and that those claims had sufficient merit to proceed – should embolden Missouri’s Lieutenant Governor Peter Kinder. Kinder, in his personal capacity and joined by several other individuals, filed an Obamacare lawsuit last month.

I mention the Kinder suit to remind everyone that there are more challenges out there than just Virginia’s and the Florida-led 20-state suit. I have personal knowledge of groups and individuals who have sued in Michigan, Ohio, and D.C. – and there are plenty of others, I’m sure (for example, the Goldwater Institute will be filing in Arizona soon). As Michael Cannon has noted, the D.C. suit, filed by our friends at the Pacific Legal Foundation, has as its plaintiff a 29-year-old artist and former National Guardsman who served two tours in Iraq. PLF will host a liveblog to discuss their case starting at 3 p.m. today. You can read the complaint here.

Finally, PLF principal attorney and Cato adjunct scholar Tim Sandefur has a nice refutation of the argument that “well, gee, George Washington required able-bodied men to buy muskets and prepare for militia service under the Militia Act of 1792.” The upshot: sure, but 1) the Militia Act was passed under the Constitution’s militia clauses (not under the Commerce Clause, taxing power, or anything else being claimed as authority by Obamacare proponents); and 2) to say that the Constitution does not protect “a freedom from government-mandated purchases” is to read the Constitution backwards because the burden is on the government to prove that it has the constitutional authority to force people to do things they don’t want to do.